Court To Cops: Residing In A State Where Marijuana Is Legal Does Not Automatically Make A Motorist 'Suspicious'

from the half-a-nation,-under-suspicion dept

Colorado legislators legalized recreational marijuana use and now law enforcement agencies in bordering states are camping out on highways hoping for easy busts. All roads in and out of the state are now "drug corridors." This has led to suspicionless stops and seizures by police officers -- predicated on nothing more than a vehicle being on a strip of highway leading to or from a supposed "source" state.

Not every bust goes as easily as officers might have hoped. Nebraska deputies tried to make drug conspiracy charges stick to a pair of Minnesotans arrested while on their way to Colorado with more than $60,000 in cash. The conviction didn't stick because it isn't against the law to conspire to perform an act that is legal in another state. It's illegal to buy or sell marijuana in both Minnesota and Nebraska, but not in Colorado, where the two were headed. The charges went away but the $60,000 in cash is likely going to remain in Nebraska law enforcement's possession.

Another traffic stop in another Midwestern state has been ruled unconstitutional, partially because Kansas law enforcement officers believed the driver being a resident of marijuana-friendly Colorado was pretty much all the reasonable suspicion they'd need to perform a search.

The Tenth Circuit Court of Appeals -- in stripping away the immunity granted to two Kansas Highway Patrol officers by the lower court -- points out the many flaws in the officers' reasoning. [PDF link]

Peter Vasquez was pulled over because his temporary tag was unreadable. Once the temporary tag had been verified as legitimate, he should have been free to go. Instead, it was merely the start of a fishing expedition by the officers, who hoped to find the Colorado resident in possession of an illegal substance.

In the car, [Officer] Jimerson told [Officer] Lewis that Vasquez was notably nervous and that there were items covered in the front and back seat of the car. Jimerson sent Lewis to check on Vasquez, to “see how nervous he [was]” and to “get a feel for him.” Upon returning, Lewis told Jimerson that Vasquez “look[ed] all scared to death.” Jimerson then checked Vasquez’s proof of insurance which indicated Vasquez also had insurance for two newer cars. Jimerson, suspecting Vasquez was transporting illegal drugs, called Trooper Jason Edie to bring a trained drug dog.

Lewis returned to Vasquez and asked where he worked. Vasquez responded “We own a store called Boutiques at Brighton.” Lewis also asked why Vasquez was not driving one of the newer cars listed on his proof of insurance. Vasquez stated that he bought the newest car for his girlfriend. Further, Vasquez told Lewis that he was moving to Maryland, which prompted Lewis to ask “Where’s all the stuff if you’re moving?” Vasquez replied that he already had moved most of his belongings.

Lewis issued Vasquez a warning… and then decided to keep pushing Vasquez to give the officers consent to search the vehicle. Vasquez refused. Officer Lewis apparently felt refusing a search was something only guilty people do.

After the refusal, Lewis said that he suspected Vasquez was “probably involved in a little criminal activity here” and detained him.

The drug dog sniffed the vehicle without alerting. Nothing illegal was discovered during the officers' subsequent search of the car. Vasquez sued the officers for their illegal search. The officers delivering this list of "suspicious" behavior in defense of their actions.

They argue the following factors created reasonable suspicion: (1) Vasquez was driving alone late at night; (2) he was travelling on I-70, “a known drug corridor”; (3) he was from Colorado and was driving from Aurora, Colorado, “a drug source area”; (4) the back seat did not contain items the Officers expected to see in the car of someone moving across the country; (5) the items in his back seat were covered and obscured from view; (6) he had a blanket and pillow in his car; (7) he was driving an older car, despite having insurance for a newer one; (8) there were fresh fingerprints on his trunk; and (9) he seemed nervous.

The Appeals Court is unimpressed with the officers' "reasonable suspicion" Frankenstein's monster.

Such conduct, taken together, is hardly suspicious, nor is it particularly unusual.

Completely unimpressed.

Neither the dissent nor the Officers explain how these factors, taken together, indicate suspicious behavior. The Officers instead recite them as a list of unrelated facts… [O]fficers must explain why the factors considered together are suspicious, and not simply recite isolated factors, leaving it to the courts to glean how they create reasonable suspicion.

Other attempts by the officers to salvage their illegal search are met with similar disbelief by the court.

The Officers also argue that Vasquez gave vague or inconsistent answers to questions about his travel plans. However, the Officers do not explain what these answers were or why they were contradictory. On reviewing the record, which contains a video recording of the interactions between the Officers and Vasquez, we cannot find anything even arguably inconsistent in Vasquez’s answers.

But it's the officers' insistence that Vasquez's status as a resident of Colorado somehow matters that ires the court most -- as if simply living in a supposed "drug source state" were enough to justify not only a stop, but a search as well. The court not only smacks down these two officers, but every lazy, presumptuous law enforcement officer who would use similarly faulty reasoning to justify detaining motorists.

As we have said previously, “that the defendant[] [was] traveling from a drug source city—or . . . a drug source state—does little to add to the overall calculus of suspicion.” Such a factor is “so broad as to be indicative of almost nothing.” Moreover, our fellow circuits have concluded the state of residence of a detained motorist is an “extremely weak factor, at best” in the reasonable suspicion calculus because “interstate motorists have a better than equal chance of traveling from a source state to a demand state.”

See also: this post. The appeals court goes on to show what this "source state" garbage means in practice.

Currently, twenty-five states permit marijuana use for medical purposes, with Colorado, Alaska, Oregon, Washington, and Washington, D.C. permitting some recreational use under state law. Thus, the Officer’s reasoning would justify the search and seizure of the citizens of more than half of the states in our country. It is wholly improper to assume that an individual is more likely to be engaged in criminal conduct because of his state of residence, and thus any fact that would inculpate every resident of a state cannot support reasonable suspicion. Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate.

The court makes an excellent point. The "you ain't from around here" theory of policing hasn't gone away. Agencies focused on drug interdiction and/or forfeiture have declared pretty much every major interstate highway to be a drug corridor. The appeals court points out that it would have been equally suspicious for Vasquez not to have been utilizing I-70 to travel from Colorado for Maryland. There's just no way to win, not when so many traffic stops have so little to do with the violations (real or imagined) officers cite before getting down to the real business of seeking consent for vehicle searches.

Reader Comments

You say 'bug', they say 'feature'

Thus, the Officer’s reasoning would justify the search and seizure of the citizens of more than half of the states in our country.

I'm pretty sure that's the point for the bandits-with-badges. If simply living in the 'wrong' state is grounds enough not just for a stop but a search that opens up opportunities for a massive number of searches for goodies they otherwise would have no grounds for.

Good to see a court actually get it right for once and not fall for the seriously old 'Because drugs!' excuse as a cover for illegal activity. Hopefully this ruling will be followed shortly by a similar one against the officers in question to provide some incentive against baseless searches in hopes of scoring something valuable.

(4) the back seat did not contain items the Officers expected to see in the car of someone moving across the country; (5) the items in his back seat were covered and obscured from view;

How can these officers possibly reconcile these two statements?

Moving on:

(6) he had a blanket and pillow in his car;

Wow - pretty much everyone with a child is suspicious on this one.

Then we have this:

(7) he was driving an older car, despite having insurance for a newer one;

So anyone with two cars that weren't manufactured the same year is suspicious when they don't drive the newer one? This is going to really make driving my Challenger a problem.

And then we are led to this one:

(8) there were fresh fingerprints on his trunk;

Really? How do you know they are "fresh"? Did someone use their finger to write the date in the dirt on the trunk? If they are fresh, does using the trunk make you suspicious?

And finally we come to this one:

(9) he seemed nervous.

Yup - just pulled over for a plate that was difficult to read, held on the side of the road for an extended amount of time. Repeatedly questioned by police. Can't imagine why he is nervous. Why not point a gun at him and add "frightened and begging for his life" to your list.

When is this country going to start holding police offices responsible for their actions?

Re:

I have yet to see anyone that's not nervous when the cops stop them. Either because you start wondering if there's anything wrong, if your car has been mistaken with some criminal (happens more than one would like) and if you are getting a ticket you'll struggle to pay because your finances are tight.. There are plenty of reasons to be nervous around cops and I haven't even put police abuse in the equation.

Re: Re: Re:

It didn't occur me but it should be obvious. It actually happened to me but with the private security of a shopping mall. They thought I was too laid back and my clothes too casual. In retrospect I should have called the cops on them and I'd have got a pretty nice sum of money. Instead I just left and gave them a big middle finger after I was out. Never been back for 15 years.

Re: Re: The Hell

Re: Re: Re: The Hell

From the perspective of 'Gallows humor' It can be 'Funny', 'Insightful', and very very sad, all at the same time. Regardless of which lens is used it doesn't say much for our ( as a country ) level of compassion. We seem to have misfiled that under the 'Jingoism' folder. :(

If I didn't try to find some humor in it I'd probably self destruct. :( But I get ya.

Re: Re: Re: The Hell

Re: The Hell

Good question. What will cops do with their time in 10 years when weed is legal in all states.

Answer. It will still be illegal at the federal level. So cops won't have enough time in the day to stop every single vehicle on every road, everywhere, bound from or to any US state. Because every state is a drug source state.

Making it legal at state level and illegal at federal level is the wet dream of the DOJ, FBI, local law enforcement and anyone else who wants to have automatic blanket suspicion of anybody, anywhere, any time.

It won't just be a 100 mile constitution free zone around the border anymore. The entire US will be a constitution free zone.

Call me crazy. But every paranoid thing in the last 10 years has come true.

Re: Re: The Hell

i am calling you a little crazy...the sticking point of your scenario, is that local donut eaters do NOT have jurisdiction or authority to enforce federal laws...now, the reality is, if the feds dont have jurisdiction, they call in the locals; if the locals dont have jurisdiction (as in your supposition), they call in the feds...BUT, the feebs are simply not going to get into random car screenings unless they steal, er, i mean impound everyones car...

Re: The Hell

Re: The charges went away but the $60,000 in cash is likely going to remain in Nebraska law enforcement's possession

I think a crowd sourced green peace style bum rush is the appropriate response to things like this. Like one day they wake up and every single state owned vehicle has been spray painted rainbow colors overnight.

It's Nebraska. How many people would it take? Offer free concert tickets in Colorado as a shwag, and I expect you'd see quite a few people up for a little clandestine mayhem.

Re: This is all quite horrible and all, but....

Why bother doing real police work, when you can just pull over everyone headed to or from a state that has legalized drugs?Civil forfeiture helps fill out the budget, and these druggies were asking for it by daring to travel the roads openly.The hassle for the driver is large to try and get back their property and courts far to often defer to officers who often recite the most threadbare accusations without any actual foundation to support them. So what if they were wrong, they got the department paid and immunity for what most people would call massive overreach & violating rights.

It is more sad that the court smacking them down is the exception and not the rule in these things.

Anything Under the Sun and More

Court To Cops: Residing In A State Where Marijuana Is Legal Does Not Automatically Make A Motorist 'Suspicious'

If not licence plates from known drug states then another in a long line of pretexts for police stops will be employed to the same effect.

Paragraph below excerpted from an article titled How the Supreme Court Made It Legal for Cops to Pull You Over for Just About Anything found at The Marshall Project website:

What’s striking about these cases — aside from the officers’ limited understanding of the laws they’re entrusted to enforce — is how flimsy the pretext can be to pull someone over. The grounds cited for stopping drivers included entering an intersection when the light was yellow; or having, on the back of a car, a trailer hitch; or having, in the front of a car, an air freshener hanging from the rearview mirror — you know, the ones shaped like pine trees, the ones so ubiquitous that the president of the Car-Freshner Corporation once told The New York Times Magazine: “We’ve sold billions of trees. Probably right up there with the number of hamburgers McDonald’s sells.”

Poster "Whaterver" is a subhuman moron

So, you're like California, who wouldn't take a teachers pension away when it was discovered he used to blindfold kids and feed them his semen, because he couldn't have his pension taken away for actions he took in the commission of his job as an educator. So, California thinks feeding semen to blindfolded kids is part of a teachers duties, just like you think violating citizens rights are part and parcel of being a police officer. You're an offensive piece of subhuman feces.

"Your Honour, the drug detector dog was broken. He gave a false negative. We've sent him back to the manufacturer for recalibration.In light of this information, we put forth to Your Honour that the case should be allowed to proceed. If the drug detector dog was working properly, he would have signalled on the car and thus our search would have been just and proper."

Otis Livingston must go to jail!!!!!!!!!!!!!!!!!!!!!!!!!

to the Ben Sherwood of ABC. CBS anchor Otis Livingston that i met told me he had secret sexual relation with Sherwood's wife Livingston also wants to kill Sherwood's wife if she will open her mouth. Sherwood's famely must becareful of Otis Livingston because he is maniac and crime!!!!!!!!